Abortion Clinic Buffer Zone Divides Justices
Showing his skepticism about the Massachusetts law, Alito repeatedly asked Gershengorn "what needs to be established" before such a statute can be found constitutional.
"You would need a lengthy history of serious congestion and other problems," Gershengorn said, "and some sort of showing that the alternatives weren't working." Massachusetts, he said, had fulfilled that requirement.
Justice Clarence Thomas also asked no questions, as is his custom, but he voted against an abortion buffer zone in the 2000 case Hill v. Colorado, the last time the court ruled on the issue. A 6-3 majority upheld the Colorado buffer zone, but four of the justices in the majority—William Rehnquist, John Paul Stevens, Sandra Day O'Connor and David Souter—are no longer on the court.
Wednesday's argument raised the likelihood that the newly composed court will rule differently, even if it does not completely overturn Hill.